ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014318

Parties:

Complaint:

Date of Adjudication Hearing: 26/09/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with 79 of the Employment Equality Acts, 1998 - 2015, andfollowing the referral of the complain to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND.

The Complainant was employed from 1st March 2007 until he terminated the employment on 19th March 2018. The Complainant worked as a Contract Cleaner, he earned €12.00 an hour and he worked 40 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 18th April 2018 alleging he had been discriminated against by the Respondent on grounds of his Race in relation to his conditions of employment and in harassing him and the latest occurrence of the discrimination took place on 30th January 2018.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant began working with a named Respondent in 2017 and following a Transfer of Undertaking he transferred to the current Respondent. In or around 20th October 2017 he informed his named Manager that he was cancelling his annual leave which was due to commence on 29th October 2017 until 1st November 2017. This was agreed. It was also agreed that he would have a Sunday night off on 22nd October 2017. However he received a text from his named Supervisor at 6.39pm to inform him that the cancellation of his annual was being denied as the roster had been done. He lodged a Grievance which was dealt with on 3rd November 2017 and the Complainant was happy with the outcome and hoped his Manager would change his attitude to him.

In December 2017 the Complainant requested a pair of safety boots from his Supervisor, named. A photo was taken of his old and broken boots and these were sent to his named Manager. He followed up twice in January 2018 and on 24th January 2018 he was informed he would have to wait another week or two. He was told if he wished to buy them himself and he would be reimbursed but the Complainant could not do so. He received his boots on 24th January 2018.

The Complainant was informed on l4th December 2017 that he could not take any more flexible days as one or 4 and that it must be one week or two. On 22nd January 2018 the Complainant requested annual leave of 4 weeks and a further two weeks Paternity Leave as he was going home to the Phillipines for a family reunion. He spoke to his Manager and begged to be allowed to take this leave. He stated the Manager shouted at him and he stated he felt intimidated. The Complainant discovered that another named employee had been granted 8 weeks annual leave to go to the Phillipines. The Complainant referenced the Employee Handbook which states at page 20 – Normally can take two weeks annual leave at one time. We also allow people who have worked with (named) for longer than one year to request a longer period of absence from work in special circumstances, such as to attend events abroad or to fulfil personal commitments. Such requests may be made once in any 12 month period and will be authorised in line with business requirements.

On 29th January 2018 the Complainant was told by his Supervisor to work early at 7pm the following night. He could not do so. His Manager rang him at 4pm to ask why and the Complainant informed the Manager that he had set hours as per his contract. He was spoken to in a threatening manner and was informed that the Transfer of Undertaking ended on 28th February 2018.

He asserted that he was treated less favourably on grounds of his race as his Manager and Supervisor are both Lithuanians. He also contends that he is being harassed by the conduct of his Manager in relation to his requests for leave and new boots.

The Complainant and his Legal Representative referenced the sections of the Employment Equality Legislation and he also identified relevant case law to substantiate their complaint of discrimination on the grounds of race.

SUMMARY OF RESPONDENT’S POSITION.

The Respondent stated that the Complainant had failed to establish a prima facie case of discrimination. In the complaint form the Complainant has failed to establish any facts and has identified a comparator in relation to his claims as regards his annual leave where the comparator had given notice of six months and had arranged his leave to coincide with a less busy period.

The Complainant commenced employment with the Respondent on 30th June 2017. He participated in an onsite induction programme and he signed to acknowledge his understanding of the employee handbook on 2nd July 2017 – evidence provided. This Handbook includes policies related to Dignity and Diversity at Work and sets out in detail the policy on Time Off.

On 26th June 2017 the Complainant submitted four separate requests for annual leave, all of which were approved for 4 days in August, September, October and December 2017.

The Complainant raised a Grievance by email dated 20th October 2017 to a named HR Generalist. This was in relation to his Manager who he asserted did not allow him to cancel his annual leave of 4 days from 29/10/2017 to 1/11/2017. The reason given was this request by the Complainant was given at short notice and the rosters for the following two weeks had been done. This complaint also related as to how his Manager spoke to him over the phone in relation to his request to cancel. This Grievance was investigated and the Complainant did accept that the Manager had a right to refuse a request for annual leave if there was a business need. A Mediation Meeting was arranged between the Parties, i.e the Complainant and his Manager on 3rd November 2017. The various policies in relation to annual leave, sick leave were discussed as was the Complainant’s complaint. The outcome of the meeting was agreed as a success and both Parties agreed to move on in a positive manner. This is acknowledged in the Complainant’s submission that he was satisfied with the outcome.

The Complainant received new safety boots when he commenced employment with the Respondent in June 2017. On 17th January 2018 the Supervisor sent the Manager a text and image of the Complainant’s work boots and requested the Manager to order replacement boots – evidence provided. The Manager responds on the same day agreeing to order the new boots and the Supervisor texts the Complainant to this effect. The Supervisor also asks for the Complainant’s shoe size. The Complainant confirms his shoe size the same day. The Manager texts the Supervisor on 24th January 2018 to inform them the boots have arrived. This took one week as boots are not held in stock and have to be ordered. – evidence provided to the Hearing.

On 13th November the Complainant submitted two further requests for annual leave for single days in December 2017. One was approved and the second was not as two other employees had already booked annual leave. This was explained clearly on the leave request form as – not approved as (employee) and (employee) on holiday. At this stage the Complainant had not taken a continuous week as leave and had only two days annual leave left in the annual leave year to March 2018.

The Complainant emailed the Manager on 16th January 2018 requesting 24th June to 29th July 2018 – 5 weeks – and that he was taking Paternity Leave from 30th July to 12th August 2018. The Complainant then submits a holiday request form on 17th January 2018 seeking annual leave from 24th June to 12th August 2018. The Manager responded on 22nd January 2-018, following consultation with HR, and that the decision about his annual leave was in line with his Contract of Employment which specifies that only two weeks annual leave can be taken at any one time and that the maximum entitlement for Paternity Leave was two weeks. He was informed by the Manager that he could only approve two weeks annual leave and two weeks Paternity Leave. The Complainant then submits three holiday request forms on 23rd January 2018 seeking unpaid leave form 22nd July to 9th August 2018 – 24th June 2018 to 7th July 2018 as Paternity Leave and to take annual leave from 8th July 2018 to 21st July 2018. He was informed the Respondent could not consider his request for unpaid leave as there was not enough cover as other employees also had annual leave requests. The requests for annual leave and Paternity Leave were granted.

The working hours in the location (named) where the Complainant worked were from 10pm to 6am x 4 days Sunday to Wednesday and 8pm to 4am on a Thursday. However the Client, following complaints from nearby residents, had to change the start times to deal with these complaints. The Manager and Supervisor contacted all the employees in relation to the revised roster and the Complainant was contacted on 30th January 2018 at 2.30 pm and he was asked if he was able to start his shift earlier at 7pm and the Complainant refused as he was unable to. The Complainant had been provided with the new Roster some days previous. The Complainant went on sick leave from 30th January 2018 until he tendered his resignation on 19th March 2018.

The Respondent had a medical certificate valid until 18th February 2018. And the Manager texted the Complainant on 18th February to ask if he is coming to work the following day, 19th Feb, 2018. The Complainant responds with a No. The Manager wrote to the Complainant on 21st Feb 2018 asking the Complainant to contact him with an update and to produce any follow on medical certificates by 23rd February 2018. The Manager received a text from the Complainant the same day with an updated medical certificate covering his absence from 26th Feb to 4th March 2018. There was no medical cert to cover his absence from 19 to 25th February 2018. The Manager responded on the same date.

The Complainant sends a text with a picture of a roster on 6th March 2018 to the Manager and asks if he was to resign or was he being terminated as his name was not on the roster. This was not to the usual phone number of the Manager. The Manager texts the Complainant on 12th March 2018 asking if he is coming to work today and explained he had not sent him a copy of the Roster as his medical certificate had only expired the previous day – 11th March. The Complainant responds stating he was sending his last certificate and his resignation letter as soon as his medical certificate expires. The Manager responded to call him to discuss and that as soon as the Complainant lets him know when he is medically certified to return to work he will place him on the roster.

The Complainant resigns on 13th March 2018. A named HR Partner wrote to the Complainant asking him to reconsider his resignation and suggests setting up a meeting with (named). He agrees and this meeting takes place on 22nd March 2018. It is explained to him that the reason he was not on the roster was he was submitting medical certificates he was unfit for work. He complained that he should have been informed that his name was no longer on the roster but accepted that his Manager had contacted him on a number of occasions. The Complainant also accepted he did not have a written contract of employment from his previous employer. He was asked to reconsider his resignation which he refused. He confirms his last day of employment is 19th March 2018.

The Respondent references case law in relation a Prima Facia Case of Discrimination – the Comparator issue. The Respondent also stated that in relation to the Complaint of Discrimination in relation to Conditions of Employment the Complainant had not set out a case.

The Respondent stated that the Complainant’s Contract of Employment – copy provided – sets out his entitlement to annual leave at Paragraph 2 and the Policy on Paternity Leave is set out in the Employee Handbook.

The Respondent also referenced the complaint in relation to Harassment as set out at Section 14 (A)(7) of the Act.

FINDINGS AND CONLUSIONS.

Preliminary issue – Burden of Proof.

Section 85A(1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complaint from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”. The Labour Court has ruled on this issue in a number of cases. In Southern Health Board v Mitchell DEE 1/2001 the Court considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be established. The Court held “The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

The facts relied on by the Complainant were – in October 2017 he sought to cancel his annual leave from 29th October 2017 to 1st November 2017 which was refused – in December 2017 he sought a new pair of safety boots the Complainant did not provide any evidence of a December request but there was evidence of a January request – on 22nd January 2018 he was refused his request to take 4 weeks annual leave and a further two weeks paternity leave and on the following day he became aware that a Lituanian national had been approved for leave of 3 weeks – on 29th January 2018 he was informed to commence work at 7pm rather than his normal 8pm start, he could not and that his contract had set hours, although the Complainant confirmed that he did not have a prior Contract of Employment with his previous employer, the Transferor – he contends that he has been discriminated against on race grounds as his Manager and Supervisor are both Lithuanians and the Complainant is from the Phipipines.

The Labour Court in ADE/12/30 UCD –and- Dr Eleanor O’Higgins held as follows: -

• It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination 2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for. 3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts. 4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination. 5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. 6 A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. 7 Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. 8 The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.

This Decision of the Labour Court was appealed to the High Court who in a Decision delivered on 8th November 2013 O Higgins- and The Labour Court and University College Cork, which disallowed the appeal.

I have read in detail the appendices supplied to the Hearing by both Parties. The established facts are – The Complainant did lodge a Grievance in relation to his Managers refusal to allow him cancel his annual leave and the reason given was that the Complainant’s request was given at short notice and the rosters for the following two weeks had been done and employees informed. There were a series of meetings in relation to this grievance and both Parties confirmed at the Hearing that the Complainant was happy with the outcome – there was evidence from both Parties that the Complainant did request new safety boots on 17th January 2018, these were ordered and the Complainant was provided with his new safety boots on 24th January 2018 – The Complainant submitted two requests for single days annual leave in December 2017, one was granted the second was refused as two other named employees had already been granted leave – the Complainant did email his Manager on 16th January 2018 requesting annual leave from 24th June 2018 to 29th July 2018 and Paternity Leave from 30th July 2018 to 12th August 2018 but submits a further request the following day requesting annual leave from 24th June 2018 to 12th August 2018. The Respondent responded on 22nd January 2018 explaining that he is only entitled to take two weeks annual leave in line with his contract at Section 6(vi) and that the maximum entitlement for Paternity Leave was two weeks and approved two weeks paid Annual leave and two weeks Paternity Leave. The Complainant responded requesting unpaid leave from 22nd July 2018 to 9th August 2018, 24th June 2018 to 7th July 2018 as Paternity Leave and annual leave form 8th July 2018 to 21st July 2018. The request for annual leave and Paternity Leave were granted. – the Complainant named a Lithuanian comparator who had been granted three weeks leave which the Respondent confirmed had been booked by this employee as he was leaving the country for medical reasons 6 months in advance. – The Complainant did not have a Contract of Employment from the Transferor but had been provided with a Contract of Employment, Employee Handbook and had participated in on insite induction Programme when he Transferred to the Respondent and evidence was provided of this when he signed his acceptance and understanding on 2nd July 2017 – The Complainant’s working hours were 10pm to 6am Sunday to Wednesday and 8pm to 4am on a Thursday. The Client of the Respondent Company requested a change following complaints from residents and all employees were contacted concerning their change of hours including the Complainant. The Complainant was on sick leave from 30th January 2018 until he tendered his resignation on 19th March 2018.

Section 6(1) of the Act provides that “For the purposes of this Act…..discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the discriminatory grounds) which – (i) exists (ii) existed but no longer exists (iii) may exist in the future, or (iv) is imputed to the person concerned”

Section 6(2)(h) “that they are of different race, colour, nationality or ethnic or national origins (in this act referred to as “the grounds of race”).

The Complainant has made two allegations of discrimination on the grounds of his Race – (1) in relation to his conditions of employment which pertain to his requests for annual leave. The evidence clearly shows that the Respondent authorised five out of six of the Complainants requests for annual leave in 2017 with the 6th request being refused because of the Complainant’s late application in circumstances where two other named employees had already been granted annual leave. The Respondent has a clear annual leave Policy which is clearly set out in the Respondents Employee Handbook which the Complainant confirmed he had received. In the second issue the Complainant sought to take 20 days annual leave, 10 days Paternity Leave and unpaid leave. The evidence was that annual leave and Paternity Leave was granted in accordance with the Policy of the Respondent. There was evidence that a named employee had been granted three weeks annual leave in March 2018 for medical reasons and to travel abroad. There are 33 employees working in this site and this was the only employee who had been granted more than two weeks annual leave and that was for specified purposes. The Complainant was granted 4 weeks off in the summer period when a lot of employees request their annual leave. The other element was his complaint in relation to his request for new safety boots which the evidence shows he requested on 17th January 2018, they were ordered and delivered to him on 24th January 2018. There was no evidence of another employee as a named comparator who received more favourable treatment.

(2) Harassment is defined at Section 14(A)(7) of the Act as follows – (a) In this section – (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …..(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person. (c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The evidence was this complaint related to the incident of 20th October 2017 when the Complainant sought to cancel his annual leave to begin on 29th October 2017 – 1st November 2017 and his request for a day off on 22nd October 2017. The request to cancel was refused on the basis of his late application but his request for 22nd October off was granted. This complaint also relates to a change in his shift times following a request by the client of the Respondent Company and applied to all the employees.

These issues have also been raised as the issues concerning his complaints around conditions of employment. The Complainant has sought to present these as complaints of Harassment by his Manager.

I find that the Complainant has not met the Burden of Proof as required by Section 85(A) of the Act.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. On the basis of the evidence, my findings above and in accordance with Section 79 of the Act I declare this complaint is not well founded as the Complainant has not met the Burden of Proof as required by Section 85A of the Act.

Dated: 20th February 2019  

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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